Government Openness at Issue as Bush Holds Onto RecordsGovernment Openness at 
Issue as Bush Holds Onto Records 
 
 
 
      January 3, 2003
      Government Openness at Issue as Bush Holds Onto Records
      By ADAM CLYMER
 
 
      ASHINGTON, Jan. 2  The Bush administration has put a much tighter lid 
      than recent presidents on government proceedings and the public release of 

      information, exhibiting a penchant for secrecy that has been striking to 
      historians, legal experts and lawmakers of both parties.
      Some of the Bush policies, like closing previously public court 
      proceedings, were prompted by the Sept. 11 terrorist attacks and are part 
      of the administration's drive for greater domestic security. Others, like 
      Vice President Dick Cheney's battle to keep records of his energy task 
      force secret, reflect an administration that arrived in Washington 
      determined to strengthen the authority of the executive branch, senior 
      administration officials say.
      Some of the changes have sparked a passionate public debate and excited 
      political controversy. But other measures taken by the Bush administration 

      to enforce greater government secrecy have received relatively little 
      attention, masking the proportions of what dozens of experts described in 
      recent interviews as a sea change in government openness.
      A telling example came in late 2001 when Attorney General John Ashcroft 
      announced the new policy on the Freedom of Information Act, a move that 
      attracted relatively little public attention.
      Although the new policy for dealing with the 1966 statute that has opened 
      millions of pages of government records to scholars, reporters and the 
      public was announced after Sept. 11, it had been planned well before the 
      attacks.
      The Ashcroft directive encouraged federal agencies to reject requests for 
      documents if there was any legal basis to do so, promising that the 
      Justice Department would defend them in court. It was a stark reversal of 
      the policy set eight years earlier, when the Clinton administration told 
      agencies to make records available whenever they could, even if the law 
      provided a reason not to, so long as there was no "foreseeable harm" from 
      the release.
      Generally speaking, said Alan Brinkley, a Columbia University historian, 
      while secrecy has been increasingly attractive to recent administrations, 
      "this administration has taken it to a new level."
      Its "instinct is to release nothing," Professor Brinkley said, adding that 

      this was not necessarily because there were particular embarrassing 
      secrets to hide, but "they are just worried about what's in there that 
      they don't know about."
      The Bush administration contends that it is not trying to make government 
      less open. Ari Fleischer, the president's press secretary, said, "The 
      bottom line remains the president is dedicated to an open government, a 
      responsive government, while he fully exercises the authority of the 
      executive branch."
      Secrecy is almost impossible to quantify, but there are some revealing 
      measures. In the year that ended on Sept. 30, 2001, most of which came 
      during the Bush presidency, 260,978 documents were classified, up 18 
      percent from the previous year. And since Sept. 11, three new agencies 
      were given the power to stamp documents as "Secret"  the Environmental 
      Protection Agency, the Department of Agriculture and the Department of 
      Health and Human Services.
      In Congress, where objections to secrecy usually come from the party 
      opposed to the president, the complaints are bipartisan. Senator Patrick 
      J. Leahy, the Vermont Democrat first elected in 1974, said, "Since I've 
      been here, I have never known an administration that is more difficult to 
      get information from." Senator Charles E. Grassley, Republican of Iowa, 
      said things were getting worse, and "it seems like in the last month or 
      two I've been running into more and more stonewalls." 
      Mr. Cheney says the Bush policies have sought to restore the proper powers 

      of the executive branch. Explaining the fight to control the task force 
      records to ABC News last January, he said that over more than three 
      decades: "I have repeatedly seen an erosion of the powers and the ability 
      of the president of the United States to do his job. We saw it in the War 
      Powers Act, we saw it in the Anti-Impoundment Act. We've seen it in cases 
      like this before, where it's demanded that the presidents cough up and 
      compromise on important principles. One of the things that I feel an 
      obligation on, and I know the president does, too, because we talked about 

      it, is to pass on our offices in better shape than we found them to our 
      successors."
      Mr. Bush has made similar comments. But the more relevant history may have 

      been in Texas, where Mr. Bush, as governor, was also reluctant to make 
      government records public. Confronted with a deadline to curb air 
      pollution, he convened a private task force to propose solutions and 
      resisted efforts to make its deliberations public. When he left office, he 

      sent his papers not to the Texas State Library in Austin, but to his 
      father's presidential library at College Station. That library was unable 
      to cope with demands for access, and the papers have since been sent to 
      the state library.
      Framing an Argument
      One argument underlies many of the administration's steps: that presidents 

      need confidential and frank advice and that they cannot get it if the 
      advice becomes public, cited by Mr. Cheney in reference to the task force 
      and by Alberto R. Gonzales, the White House counsel, in explaining the 
      administration's decision to delay the release of President Ronald 
      Reagan's papers.
      Mr. Gonzales said "the pursuit of history" should not "deprive a president 

      of candid advice while making crucial decisions."
      Some administration arguments are more closely focused on security. Mr. 
      Ashcroft has said that releasing the names of people held for immigration 
      offenses could give Al Qaeda "a road map" showing which agents had been 
      arrested. 
      Secretary of Defense Donald H. Rumsfeld, who has threatened action against 

      Pentagon officials who discuss military operations with reporters, said 
      before troops at the Army's Special Operation Command on Nov. 21, 2001, "I 

      don't think the American people do want to know anything that's going to 
      cause the death of any one of these enormously talented and dedicated and 
      courageous people that are here today."
      The critics argue more generally. Former Senator Daniel Patrick Moynihan, 
      Democrat of New York, argues that secrecy does more harm than good. The 
      Central Intelligence Agency's exaggerated estimates of Soviet economic 
      strength, for example, would have stopped influencing United States 
      policy, Mr. Moynihan said, if they had been published and any 
      correspondent in Moscow could have laughed at them. 
      "Secrecy is a formula for inefficient decision-making," Mr. Moynihan said, 

      and plays to the instincts of self-importance of the bureaucracy.
      Mary Graham, a scholar at the Brookings Institution and the John F. 
      Kennedy School of Government at Harvard, saw two major risks in this 
      administration's level of secrecy.
      "What are often being couched as temporary emergency orders are in fact 
      what we are going to live with for 20 years, just as we lived with the 
      cold war restrictions for years after it was over," Ms. Graham said. "We 
      make policy by crisis, and we particularly make secrecy policy by crisis."
      Moreover, she said, it ignores the value of openness, which "creates 
      public pressure for improvement." When risk analyses of chemical plants 
      were available on the Internet, she said, people could pressure companies 
      to do better, or move away. 
      Mr. Fleischer contends that there is no secrecy problem. "I make the case 
      that we are more accessible and open than many previous administrations  
      given how many times [Secretary of State Colin L.] Powell, Rumsfeld and 
      Ashcroft have briefed," he said.
      Asked if there was anyone in the administration who was a consistent 
      advocate of openness, who argued that secrecy hurt as well as helped, Mr. 
      Fleischer said President Bush was that person. He said that was 
      exemplified by the fact that while "the president reserved the authority 
      to try people under military tribunals, nobody has been tried under 
      military tribunals."
      In the cases of Zacarias Moussaoui and John Walker Lindh, he said, Mr. 
      Bush has opted for the more open and traditional route of the criminal 
      justice system. 
      Shielding Presidents
      The Bush administration's first major policy move to enforce greater 
      secrecy could affect how its own history is written.
      On March 23, 2001, Mr. Gonzales, the White House counsel, ordered the 
      National Archives not to release to the public 68,000 pages of records 
      from Ronald Reagan's presidency that scholars had requested and archivists 

      had determined posed no threat to national security or personal privacy. 
      Under the Presidential Records Act of 1978, the documents were to become 
      available after Jan. 20, 2001, twelve years after Mr. Reagan left office. 
      Mr. Reagan's administration was the first covered by the 1978 law.
      The directive, which also covered the papers of Mr. Reagan's vice 
      president and the president's father, George Bush, was to last 90 days. 
      When Mr. Gonzales extended the sealing period for an additional 90 days, 
      historians like Hugh Davis Graham of Vanderbilt University attacked the 
      delays, saying they were designed to prevent embarrassment and would 
      nullify the records law's presumption of public access to those documents. 

 
      On Nov. 1, 2001, President Bush issued an even more sweeping order under 
      which former presidents and vice presidents like his father, or 
      representatives designated by them or by their surviving families, could 
      bar release of documents by claiming one of a variety of privileges: 
      "military, diplomatic, or national security secrets, presidential 
      communications, legal advice, legal work or the deliberative processes of 
      the president and the president's advisers," according to the order. 
      Before the order, the Archivist of the United States could reject a former 

      president's claim of privilege. Now he cannot.
      The order was promptly attacked in court and on Capitol Hill. Scott L. 
      Nelson of the Public Interest Litigation Group sued on behalf of 
      historians and reporters, maintaining that the new order allowed unlimited 

      delays in releasing documents and created new privileges to bar release.
      House Republicans were among the order's sharpest critics. Representative 
      Steve Horn of California called a hearing within a few days, and 
      Representative Doug Ose, another Californian, said the order "undercuts 
      the public's right to be fully informed about how its government operated 
      in the past." The order, Mr. Horn said, improperly "gives the former and 
      incumbent presidents veto power over the release of the records."
      On Dec. 20, the White House sought to silence the complaints by announcing 

      that nearly all the 68,000 pages of the Reagan records were being 
      released. Legislation introduced to undo the order never made it to the 
      House floor, where leaders had no interest in embarrassing the president. 
      And a lawsuit challenging the order languishes in Federal District Court 
      before Judge Colleen Kollar-Kotelly.
      Historians remain angry. Robert Dallek, a biographer of Lyndon B. Johnson 
      and John F. Kennedy, said, "This order of Bush, we feel it's a disgrace  
      what it means is if this policy applies, they can hold presidential 
      documents close to the vest in perpetuity, the way Lincoln's papers were 
      held by the family until 1947."
      Battling the Congress
      The administration's most publicized fight over secrecy, and its biggest 
      victory to date, has come over its efforts to keep the investigative arm 
      of Congress from gaining access to records of the energy task force led by 

      Vice President Cheney.
      This fight is only the showiest of many battles between the Bush 
      administration and members of Congress over information. Such skirmishes 
      happen in every administration. But not only are they especially frequent 
      now, but also many of the loudest Congressional complaints come from the 
      president's own party, from Republicans like Senator Grassley and 
      Representative Dan Burton of Indiana. 
      The vice president framed the fight as being less about what the papers 
      sought by the General Accounting Office might show than over power  what 
      Congress could demand and how it could get it or what essential 
      prerogatives the executive branch could maintain, especially its ability 
      to get confidential advice. And he welcomed the battle. In an interview 
      the day before the suit was filed, he said. "It ought to be resolved in a 
      court, unless you're willing to compromise on a basic fundamental 
      principle, which we're not." And on Dec. 9, Judge John D. Bates of Federal 

      District Court ruled for the vice president.
      Judge Bates ruled that David M. Walker, who as comptroller general heads 
      the General Accounting Office, had not suffered any personal injury, nor 
      had he been injured as an agent of Congress, and therefore the suit could 
      not be considered. An appeal is all but certain to be filed, but for the 
      time being, the administration clearly has a victory.
      "Vice President Cheney's cover-up will apparently continue for the 
      foreseeable future," said Representative John D. Dingell, the Michigan 
      Democrat who pressed Mr. Walker to act, hoping to find evidence of special 

      interest favoritism for Republican donors in the Cheney documents.
      There have been other bitter fights over disclosure between the White 
      House and the Congress. While the Democrats controlled the Senate 
      Environment and Public Works Committee, the chairman, James M. Jeffords, 
      independent of Vermont, repeatedly threatened last year to subpoena the 
      Environmental Protection Agency for documents explaining the scientific 
      basis and potential impact of its proposed air pollution rule changes 
      requiring aging power plants to install new pollution controls when their 
      facilities are modernized. Mr. Jeffords, who never got around to issuing 
      the subpoena, argued that the administration had broken its promises of 
      cooperation.
      Representative F. James Sensenbrenner, the Wisconsin Republican who is 
      chairman of the House Judiciary Committee, was infuriated last August when 

      the Justice Department said it would send answers to some of his questions 

      about how it was using the USA Patriot Act to the more pliant Intelligence 

      Committee, which was not interested. Mr. Sensenbrenner threatened to issue 

      a subpoena or "blow a fuse."
      Mr. Grassley, the incoming chairman of the Finance Committee, said 
      administration obstruction required him to go and personally question 
      government officials working on Medicare fraud cases, instead of sending 
      his staff. But his new chairmanship and the Treasury confirmations before 
      it may give him a lever. He said he told a White House aide of his 
      problems and asked, "How can I get a presidential nominee through if I 
      have to be spending my time doing things my investigators could be doing?"
      Closing the Courtroom
      Legal policy is where the administration's desire to maintain secrecy has 
      excited the most controversy. Since the first few days after the Sept. 11 
      attacks, the federal government has insisted on a rare degree of secrecy 
      about the individuals it has arrested and detained. 
      The immigration hearings held for hundreds of people caught in sweeps 
      after the bombings have been closed to relatives, the news media and the 
      public.
      The names of those detained by the Immigration and Naturalization Service 
      have been kept secret, along with details of their arrests, although on 
      Dec. 12 the Justice Department told The Associated Press there had been 
      765 of them, of whom only 6 were still in custody.
      A few dozen individuals have been held as material witnesses, after the 
      Justice Department persuaded federal judges that they had information 
      about terrorism and might flee if released. Neither their names nor the 
      total number of them have been made public.
      The administration has also kept a tight lid on the identities of the 
      military detainees being held at Guantnamo, Cuba. But in considering how 
      to deal with them, in military tribunals, the government has moved away 
      from secrecy. When Mr. Bush directed the Defense Department in November 
      2001 to set up military tribunals to try noncitizens suspected of 
      terrorism, one reason cited was the ability to hold those proceedings in 
      secret, to protect intelligence and to reduce risks to judges and jurors. 
      But when the rules were announced in March, they said "the accused shall 
      be afforded a trial open to the public (except proceedings closed by the 
      presiding officer)." 
      While the government's policy in the immigration cases has suffered some 
      judicial setbacks, appeals and stays have allowed it to remain in effect. 
      Fundamentally, the government has argued against opening hearings by 
      contending that they would make available to terrorists a mosaic of facts 
      that a sophisticated enemy could use to build a road map of the 
      investigation, to know what the government knew or did not know, and thus 
      to escape or execute new attacks.
      That argument was also made in the main case involving releasing the names 

      of those detained, where the government also maintains that the Freedom of 

      Information Act's right to privacy would be violated by a release of the 
      names.
      Legal scholars have objected particularly to the decision to close all the 

      immigration hearings, rather than parts of them. Stephen A. Schulhofer, a 
      professor at New York University Law School, said there was already a 
      legal provision for closing a hearing when a judge was shown the 
necessity.
      The "road map" explanation seemed implausible, Mr. Schulhofer said, 
      because the detainees had a right to make phone calls, in which "a real 
      terrorist could alert cohorts who would not have known he was detained."
      At a recent seminar at Georgetown University Law School, Assistant 
      Attorney General Michael Chertoff said protecting privacy was the main 
      reason for suppressing the names. Representative Barney Frank, Democrat of 

      Massachusetts, dismissed that rationale, asking Mr. Chertoff, "How can you 

      even say that with a straight face?" 
      So far, the government has won challenges to the detention of material 
      witnesses. 
      On releasing the names, it lost in a Federal District Court here, but 
      appeared to have impressed two of the three appeals court judges who heard 

      the case in November.
      On the question of a blanket closing of "special interest" immigration 
      hearings, an appeals court in Cincinnati ruled against the government in 
      August and one in Philadelphia ruled in its favor in October. The Supreme 
      Court is likely to be faced with choosing between them. 
      Putting Sand in the Gears
      Immediately after the Sept. 11 terrorist attacks, governments at all 
      levels feared that information they made publicly available could be 
      useful to terrorists, and began moves to curtail access, a trend the Bush 
      administration encouraged. 
      The first of the strictures on information resulting from Sept. 11 were 
      described by Ms. Graham, the Brookings and Kennedy School scholar, in her 
      book, "Democracy by Disclosure" (Brookings Institution Press, 2002). 
      "Officials quickly dismantled user-friendly disclosure systems on 
      government Web sites," she wrote. "They censored information designed to 
      tell community residents about risks from nearby chemical factories; maps 
      that identified the location of pipelines carrying oil, gas and hazardous 
      substances; and reports about risks associated with nuclear power plants."
      Many of those withdrawals mirrored efforts industry had been making for 
      quite a few years, arguing that the public did not really need the 
      information. Some information has been removed from public gaze entirely. 
      James Neal, the Columbia University librarian, said that officials of 
      libraries like his around the country that serve as depositories for 
      federal information "have some concern about the requests to withdraw 
      materials from those collections." Perhaps even more important, Mr. Neal 
      said, was that "we also do not know what materials are not getting 
      distributed." 
      Some material that has been removed from Web sites is still available, 
      though obviously to fewer people, in government reading rooms. The 
      chemical factory risk management plans cited by Ms. Graham are no longer 
      available through the Internet, said Stephanie Bell, a spokeswoman for the 

      Environmental Protection Agency. But individuals can look at up to 10 of 
      them and take notes (but not photocopies) in 55 government reading rooms 
      around the country, Ms. Bell said. There is at least one reading room in 
      every state except Maine, Nebraska, North Carolina, South Dakota, Vermont 
      and Wyoming.
      Last March the Defense Department issued a draft regulation concerning 
      possible limits on publication of unclassified research it finances and 
      sharp restrictions on access by foreign citizens to such data and research 

      facilities.
      This prompted some concerted resistance from scientists. Bruce Alberts, a 
      biochemist who heads the National Research Council and the National 
      Academy of Sciences, told the academy's annual meeting on April 29: 
      "I am worried about a movement to restrict publication that has been 
      proceeding quietly but quickly in Washington. Some of the plans being 
      proposed could severely hamper the U.S. research enterprise and decrease 
      national security. It is being suggested that every manuscript resulting 
      from work supported by federal funds be cleared by a federal project 
      officer before being published, with serious penalties for violations. 
      Another rule could prevent any foreign national from working on a broad 
      range of projects."
      Even though the department withdrew its proposal and officials say there 
      has been no decision on whether to try again, the scientists say they are 
      still worried. 
      The new Ashcroft directive on Freedom of Information requests has also 
      begun to be felt. A veteran Justice Department official said he believed 
      that fewer discretionary disclosures were being made throughout the 
      government because "as a matter of policy, we are not advocating the 
      making of discretionary disclosures."
      Delays are one clear reality. The General Accounting Office reported last 
      fall that "while the number of requests received appears to be leveling 
      off, backlogs of pending requests governmentwide are growing, indicating 
      that agencies are falling behind in processing requests." 
      To Thomas Blanton, who helps run the National Security Archive, which 
      collects and posts documents gained through Freedom of Information Act, 
      that is a clear effect of the Ashcroft order.
      "What these signals from on high do in a bureaucracy, they don't really 
      change the standards," Mr. Blanton said, "but they put molasses or sand in 

      the gears."
 
 
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